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How to Avoid the Bermuda Triangle of Employment Laws

How to Avoid the Bermuda Triangle of Employment Laws. Dons Background. Employment law attorney since 1983 Editor EPLiC journal since 1999 Presented to work comp brokers for 12 yrs. Presented over 300 CEO workshops Pres. HR That Works used by 3,000 companies.

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How to Avoid the Bermuda Triangle of Employment Laws

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  1. How to Avoid the Bermuda Triangle of Employment Laws

  2. Dons Background • Employment law attorney since 1983 • Editor EPLiC journal since 1999 • Presented to work comp brokers for 12 yrs. • Presented over 300 CEO workshops • Pres. HR That Works used by 3,000 companies

  3. People Get Injured Because… • They slipped on the stairs and hurt their back • Repetitive typing caused carpal tunnel • They have an asthmatic condition from inhaling industrial dust • They would rather stay home and watch Oprah! • And a million other reasons…

  4. So They … • File a Work Comp Claim • Request ADA disability accommodation • Request FMLA leave • No show, no call

  5. TYPICAL Headlines • Company Gets Hit with 2.8 Million Work Comp Retaliation Verdict • Blind Applicant Wins $307,000 ADA Verdict • FMLA Verdict Could Cost Chase Manhattan Over $8 Million

  6. BUSINESS Opportunities • Pre-hire physicals • Leave management assistance • Environmental assessments • Incentive program design • Work with insurance brokers!

  7. Drs. Can Help Best When… They know the law!

  8. A Work Comp Program • Immediate attention to injuries • Post accident investigation • Return to work program including light duty

  9. Return to Work • Acknowledge emotional needs • Employee cooperation • Light duty transition

  10. Light Duty • Light duty is optional • Light duty programs w Goodwill • Employee may refuse WC light duty • Time on light duty not counted as FMLA • The benefit to employers

  11. Watch Company Policies • EE must be released to return to full duty  • before  he/she can be reinstated. • If an employee is declared P&S and can’t return to their regular job they will be let go. • Modified work is not offered after 90 days. 

  12. Americans with Disabilities Act

  13. ADAAA

  14. Protects Against Discrimination • 15 or more EEs (5 in CA) • If disabled currently • If formerly disabled • If perceived as disabled

  15. Disability Inquiries • Pre-hire physicals • Request for accommodation • Medical certifications (RTW, FMLA, sick policies)

  16. Arriving at a Reasonable Accommodation • Interactive dialogue • Review essential job functions • Focus on limitations *** • Reasonableness vs. undue hardship • Medical documentation

  17. Arriving at a Reasonable Accommodation, cont. • Equipment, scheduling, • job restructuring, transfers • Most cost less than $500 • Get professional help!

  18. Tips for Dealing with the ADA • Job descriptions and ads identify physical requirements • No “direct threats” • Leave of absence policies • Vacant positions available? • OK to pay less if doing less

  19. Job Accommodation Network • http://askjan.org • Accommodation “cheat sheets” • ADA Library • Accommodation support

  20. Family and Medical Leave Act

  21. Eligibility • 50 employees within 75 mi. • At least 1,250 hours of service w/in previous 12-mo. • Joint employers, etc.

  22. Basis for Leave A serious health conditionfor them or a “family member”

  23. Is There a Serious Health Condition? • Inpatient care, continuing treatment, pregnancy care, child care, chronic conditions, multiple treatments • Broader concept than an ADAAA “disability” • Inability to perform the job

  24. Employee Rights and Obligations • 12 weeks leave • Intermittent leave • Medical certifications and other documentation • Notice of changed circumstances • Obtain a fitness for duty certification upon return to work

  25. Benefits Continuation • Employer pays for up to 12 weeks • Employee pays their portion of bill • Right to reimbursement if employee doesn’t return • May be required to take accrued vacation, sick or PTO leave

  26. FMLA Job Reinstatement • Required to give their job back • Equivalent position, pay and benefits • Job elimination and RIFS • Hired for specific term • Highly paid executives

  27. ADA vs. FMLA 50 Leave as a requirement Formal process Intermittent leave required Light duty not required Right to reinstatement • 15/ 5 in CA • Leave as an accommodation • No formal process • Intermittent leave unless undue burden • Light duty as an accommodation • No right to reinstatement

  28. Additional Laws, Regulations and Policies • State disability insurance for off the job injuries • CA Paid Family Leave • Company policies and contracts

  29. The Golden Rule How would you like a loved one to be treated?

  30. Contact Info • For free report: Creating an Injury Prevention and Management Program that Works • don@hrthatworks.com • (800) 234-3304 • www.hrthatworks.com • Thank you!

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